Northeastern states sue EPA for ‘failing to act’ on smog

Source: Sean Reilly, E&E News reporter • Posted: Wednesday, January 3, 2018

New York and seven other Northeastern states are suing U.S. EPA regarding its refusal to undertake a sweeping expansion of regional ozone reduction efforts.

The lawsuit, filed last week, challenges the agency’s turndown last fall of a 2013 petition to add another nine states — mostly in the South and Midwest — to the Ozone Transport Region (OTR). That step could have required those states to take fresh steps to limit the downwind drift of ozone and the pollutants that create it; in opting against expansion, EPA officials highlighted existing “good neighbor” requirements that already give regulators the ability to target polluters that contribute to the spread of ozone across state lines (E&E News PM, Nov. 1, 2017).

That final rule followed a similar proposal issued in the waning days of the Obama administration. In announcing the suit, however, New York Attorney General Eric Schneiderman (D) accused the “Trump EPA” of “repeatedly failing to act to control smog pollution that jeopardizes New Yorkers’ health.” The other plaintiffs, all of which also have Democratic attorneys general, are Connecticut, Delaware, Maryland, Massachusetts, Pennsylvania, Rhode Island and Vermont.

The suit is pending with the U.S. Court of Appeals for the District of Columbia Circuit. In an email this morning, an EPA spokesman said the agency does not comment on pending litigation.

Ozone, the main ingredient in smog, is formed by the reaction of volatile organic compounds and nitrogen oxides in sunlight. It has been linked to asthma attacks in children and worsening breathing problems for people with cystic fibrosis and other chronic respiratory diseases.

Congress created the OTR as part of the 1990 Clean Air Act amendments. The area encompasses part or all of a dozen states, ranging from Maine to Northern Virginia, as well as the District of Columbia.

In the 2013 petition seeking a first-ever expansion of the region, New York and the other states had argued emissions from outside the OTR were undercutting their efforts to comply with EPA’s 2008 ground-level ozone standard of 75 parts per billion.

The agency, while continuing to implement the 2008 threshold, also tightened the ozone standard in 2015 to 70 ppb.